Why Senate Democrats Had To Invoke The ‘Nuclear Option’

After five years of filibusters, obstruction, lengthy waits for confirmation and arguments over whether the party that failed to win either the White House or the Senate nonetheless has the power to hold top government jobs open for as long as Barack Obama is president, Senate Democrats finally decided that enough is enough. On Thursday, nearly every member of the Democratic caucus invoked a procedural maneuver that will allow the Senate to confirm several blocked nominees by a majority vote. The era of minority rule is over, at least where it comes to almost every confirmation.

As the two parties try to blame each other for the circumstances that made this maneuver necessary, a lot of graphs, charts, statistics and outright fabrications are going to be thrown around by each side to prove that the other was the instigator. The truth, however, is that you only need to look at one chart to understand how we got here — this one:

Though it’s not a perfect measure, a common mechanism used to gauge the frequency of filibusters is the number of “cloture motions” filed during a particular Congress — “cloture” is the procedure used to break a filibuster. So, while filibusters certainly were not unheard of before Democrats gained their current majority and Sen. Mitch McConnell (R-KY) became the Republican leader, they spiked massively the minute McConnell assumed this position. Indeed, nearly 3 in 10 of all cloture motions filed in the history of the Senate were filed during McConnell’s tenure as Minority Leader. Any claim that the Senate’s current minority is simply following past practices is not credible. The filibuster existed before the Age of McConnell, but McConnell made them commonplace.

there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.

Two sets of court decisions provoked a crisis that threatened to shut down the NLRB entirely. The first was a 2010 Supreme Court decision holding that the NLRB is powerless to act without a quorum of at least three members. Thus, by filibustering nominees to a majority of the seats on the NLRB, Senate Republicans were on the verge of depriving it of the quorum it needs to operate. And if the NLRB went dark, many of the protections workers enjoy in the workplace would cease to exist until a sufficient number of seats were filled.

Currently, the D.C. Circuit is dominated by very conservative Republicans. Although the court has four active judges from each party, it also includes six judges in partial retirement who continue to hear a fairly substantial load of cases. Five of these six senior judges are Republicans.

It’s also worth noting that, when George W. Bush was in the White House, Senate Republicans held very different views about the D.C. Circuit. Today, they object to the fact that President Obama wants to confirm more than eight active judges to the court, but when Bush was president, many of the same Republicans voted to confirm a total of eleven active judges to this court. If Obama fails to fill the court’s vacancies, it’s easy to imagine that Senate Republicans will once again be happy to confirm new judges if one of their fellow partisans moves into the White House. The result will be that, no matter who the American people elect as president, Republicans will have a virtual veto power over agency actions through their control of the D.C. Circuit.

The Bigs

If Senate Republicans are willing to fight this hard to keep control over the second most powerful court in the country, imagine what will happen if Justice Scalia decides to spend more time with his family? In 2009, when President Obama was at the peak of his popularity, just nine Republican senators voted to confirm Justice Sotomayor — and only three are still in the Senate. Even if those three, Sens. Lamar Alexander (R-TN), Susan Collins (R-ME) and Lindsay Graham (R-SC) support the next Supreme Court nominee, that’s still two votes shy of the amount needed to break a filibuster if all 55 Democrats also support the nominee.

And there’s no guarantee that these three Republicans would not filibuster a Democratic appointee to the Supreme Court. In 2012, a Tea Party candidate named Richard Mourdock defeated six-term incumbent Sen. Richard Lugar (R-IN) in the Republican Party primary. Mourdock made Lugar’s votes in favor of Justices Sotomayor and Kagan a major focus of his primary campaign. When primary season rolls around next year, and the next cycle after that, and the next cycle after that, Republican senators are going to remember what happened to Richard Lugar. If they want to keep their jobs, they’re going to be very reluctant to vote for another Sotomayor or Kagan.

Simply put, if Democrats every want to confirm another justice to the Supreme Court of the United States, they have to stand for filibuster reform.

Technically, the changes that Senate Democrats backed today still allow filibusters on Supreme Court nominees. As a practical matter, however, that should not matter one bit. Now that the nuclear option is established as an effective way to bypass minority obstruction, Democrats will have no excuse if they allow a future filibuster of a Democratic president’s Supreme Court nominee to stand.

Sabotage

Beyond the need to prevent Senate Republicans from cutting off workers’ rights or from forming an unbreakable grip on the judiciary, there is another, more subtle reason why filibuster reform can no longer be put off. While it’s a bit of a stretch to blame the botched Healthcare.gov roll out on a particular filibuster, one Senate Democratic source described this incident as a wake up call for Democrats about the perils of a dysfunctional government. Democrats’ central message is that they can deliver better results for the American people by tapping into the power of government to improve people’s lives. Every job that goes unfilled, every outstanding potential nominee who opts out of public service because they don’t want to deal with the hassle, and every deal that must be struck in order to accomplish basic government functions undermines the government’s ability to harness this power.

The filibuster allows Republicans to sabotage government and then campaign on the fact that government isn’t working. This is a recipe for more sabotage.